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Judge will decide Act 537 fate

By Rebecca Zemencik, Managing Editor rebecca-z@citizenstandard.com

HARRISBURG — After two days of deliberations, the Hegins-Hubley Joint Act 537 Plan is still no closer to being implemented.
The hearing was held last Tuesday and Wednesday at the Rachel Carson State Office Building, 400 Market Street, before presiding Judge Richard P. Mather Sr. before the Pennsylvania Environmental Hearing Board.
Witnesses testified Tuesday on whether they felt the Joint Act 537 Plan which was approved by the state Department of Environmental Protection on April 17, 2015 is able to be implemented and whether it is affordable.
During opening comments, Kevin Walsh, representing the Concerned Citizens — Roger Wetzel, William Wolfgang, Randy Shadle, Kenneth W. Richter, Kenneth Graham and Harry Mausser — who filed an appeal to the plan on May 14, 2015, and are listed as the appellants in the case, said the evidence he was going to present would show insufficiencies in the plan.

Representing Hegins Township, Attorney Matthew Boyd, of Elliot Greenleaf & Dean, Scranton, said the following, “something stinks about this plan, it’s going to benefit a certain Hubley Township resident. The plant itself is to be located on a Hubley Township Supervisor’s land. Benesch estimated the cost of the plan to be $26 million when in reality it will be much higher. DEP shouldn’t rely on Alfred Benesch and Company because it is severely under affordable. The true cost, according to Entech Engineering, who Hegins Twp. hired to review the plan, the cost per EDU (equivalent dwelling unit) will be more like $122 month instead of the estimated average of $70 that Benesch is saying. This plan is not feasible.
Attorney John Dean joined Boyd in representing Hegins Twp.
Joseph S. Cigan, III, assistant chief counsel, DEP Northeast Regional Office, Wilkes-Barre, said the plan was reviewed by DEP employees, it went through the technical review and responses which were addressed and DEP approved the plan April 17, 2015.
Attorney Timothy J. Nieman, of Rhoads & Sinon LLP, Harrisburg, representing Hubley Township, said Hegins and Hubley Townships both agreed through an inter-municipal agreement to investigate a sewer project, which they did and he said the plan is, was and remains acceptable on an environmental and administrative standpoint.
Kenneth Richter, 1723 W. Maple St., Valley View, was the first of three witnesses called by attorney Walsh.
Richter said he had questions for James J. Rhoades Jr., a project manager with Alfred Benesch & Co., Pottsville, the firm who prepared the plan. Richter’s concerns included the affordability of the plan, why landlords were not interviewed, delinquency rates of users, why two childcare centers in the sewage coverage area were not interviewed about the impact, and why such a large sum was being spent in the Fearnot area for only eight homes.
Richter said he thought site 10, located at the Schuylkill/Dauphin County line would have given the opportunity for a linear sewer system, and would give more time to incorporate outlying areas for sewer hook-up at a later date.
Instead, site six along Fearnot Road was selected. According to the sewage facilities plan update revision approved by DEP on April 17, 2015, the plan includes the construction of a 600,000 gallon/per day wastewater treatment plant located along Fearnot Road in Hubley Township. Sewer service is proposed for the Sacramento, Spring Glen and Fearnot areas of Hubley Township and the Hegins, Valley View and Lamberson areas of Hegins Township. The collection system consists of approximately 45,000 feet of 8-inch gravity pipe; 7,425 feet of low pressure sewerline; 30 grinder pumps; 11,270 feet of force main; four pump stations in Hubley Township; and 121,610 feet of 8-inch gravity pipe; 2,870 feet of force main and three pump stations in Hegins Township. The plan also provides for an onlot sewage disposal system management program for areas of the municipalities not within the proposed sewer service area.
Richter said he had objected to the revised resolution which Hegins Township approved April 13, 2015, and expressed his concern two days later on April 15, when a letter was sent on behalf of the Concerned Citizens of Hegins Township to Rob Stermer, DEP Sewage Planning Supervisor, Pottsville. The letter prepared by Walsh, with Donald G. Karpowich Attorney-At-Law, Drums, requested DEP deny the plan update.
Walsh asked if there had been any public comment on the updated revisions to the plan and Richter said there had not. Walsh asked about the delinquency rates for water customers, which Richter said were at 11.22 percent in Hubley and at 4.54 percent in Hegins. Walsh also questioned if there were commercial properties in Hegins Township and what they were.
Nieman objected, saying he wasn’t sure what the relevance was. Walsh said there was no accounting for commercial properties in the Act 537 plan.
Judge Mather overruled Nieman and Richter was permitted to answer.
Walsh asked if Richter had received a response to his comments objecting the plan. Cigan said the April 6, 2015 response is considered part of the Act 537 plan. Richter said he had only received that information over the “last two weeks”.
Cigan asked Richter if he agreed that excess capacity had been built into the plan. Of the 600,000 gallons per day, about 150,000 gallons was for excess capacity, Cigan said. Walsh objected; the judge sustained the objection; and Richter replied that he was not an expert.
Walsh called his second witness, Frederick E. Ebert of Ebert Engineering. Ebert said he has been a professional engineer for the past 13 years and worked for 22 years in the engineering field. He testified that he has designed Act 537 plans, pump stations and had worked with several municipalities.
Ebert had been hired by the concerned citizens group, and said he has been following the Act 537 plan in Hegins Township because he is a property owner in Hegins Township. Ebert said the plan summary did not accurately include the user fee or construction costs, mandatory connection within 150 feet of the main, or take into account the act and costs of acquiring easements. The summary should have also identified the Hegins-Hubley Authority as the entity that would be handling the sewage plan.
Ebert testified in order to determine if the treatment facility is the proper size, you need to know the correct number of users to determine flow. He also said the plan did not accurately identify the EDUs that would be used at schools or businesses, accurately consider future growth, and did not take into account the redevelopment of existing lots, or undeveloped potential at the industrial park, or the depth of the sanitary sewer. Ebert said he believed there was an underestimation of the delinquency rate, and several treatment alternatives were not considered. He said the cost of pump stations usually runs between $200,000 to $300,000 each; but those listed in the plan range from $75,000 to $200,000.
The components of the system are going to wear out in five to seven years, Ebert said, and there’s no capital reserve built in to replace those items that break.
The hearing continued after lunch with Cigan cross-examining Ebert. He asked who was paying for Ebert’s services and what he reviewed. Ebert said the citizens had hired him and he reviewed the Act 537 plan, as well as three or four earlier versions, since September 2015. He said he went to the township office to make sure he had the right plan and he reviewed the plan DEP approved.
Cigan showed Ebert an aerial map called “Alternate 6 Overall System Layout” and asked if that was something he had reviewed, which Ebert confirmed he had. Cigan asked if that plan identifies the 150-foot mandatory distance for connection. Ebert said it does identify that, but not in the plan summary.
Walsh’s third witness was Robert J. Weir, of Entech Engineering, Pottsville. Weir said his firm was hired by Hegins Township in January 2016, strictly looking at the cost estimates of alternative site 6 (Fearnot Road).
Neiman reminded everyone at the hearing that Weir didn’t prepare the report he was testifying from. According to Neiman, Don Coff, a senior project manager, who is not a licensed engineer, prepared the report.
Weir said his firm formed a small team which included two engineers who work with collection systems and two engineers who work with waste water treatment plants, but Weir did admit that Coff is not a licensed engineer.
Weir noted that there was no line item for the land acquisition in the current plan approved by DEP. He said a $50,000 land acquisition was added which drove the cost up approximately $3 per year, per EDU.
After Weir’s testimony, the appellants and Hegins Township rested their case.
Cigan began his case for DEP by calling Rob Stermer and James Ridgik, DEP, Wilkes-Barre, engineer in the Planning section.
According to Stermer, who was assigned as a department reviewer of the plan in October 2014, no public comment period was needed after a revised resolution of the joint plan was approved because he said the changes made weren’t significant.
Cigan asked Stermer if he had received a response to his technical review comments from Alfred Benesch & Co., Pottsville, the firm who prepared the plan. Stermer said he had.
In a DEP letter dated March 20, 2015, Stermer sent both townships a letter notifying them that the DEP had completed its technical review of the “Official Plan Update” prepared by Benesch. There were 13 technical review comments to which DEP sought a response.
Some of the comments in the letter stated: treatment process cost estimates must include the cost of purchasing nutrient credits required to comply with the department’s Chesapeake Bay Tributary Strategy; the need to identify the actual funding source for the project cost not covered by PennVEST funding; cost estimates provided for alternative site six do not contain any costs associated with parcel acquisition for the treatment facilities or pump stations; the plan does not specifically identify a defined sewage service area; they were asked to provide the floodplain mapping for the proposed wastewater treatment plant and pump station locations.
Stermer identified a letter dated April 6, 2015, that was the response from Benesch addressing DEP’s technical review. Cigan asked if the April 6 letter supplement was part of the Act 537 plan, and Stermer confirmed that it was.
Cigan asked why the evaluation was made by the department. According to Stermer, the evaluation examined the costs of on-lot systems versus a public sewer system in the Fearnot area, Hubley Township, which is the chosen location for the treatment facility, or site 6. Stermer said the evaluation demonstrated that the cost of on-lot systems in the Fearnot area was greater than the cost of providing public sewer there.
The resolution was dated April 13, 2015, and was approved and signed by Hegins Supervisor Chairman Michael Begis and Supervisor Brad Carl. Supervisor LeRoy Shuey opposed it.
Walsh cross-examined and asked if he confirmed any of the figures used in the plan, checking on EDUs and verifying construction costs. Stermer said DEP went by the information provided in the plan.
“We did not require the plan to be re-advertised for public comment again,” Stermer said. “From our perspective, we did not require that.”
Walsh questioned whether commercial properties (in Hegins Township) appear in the plan. Stermer said he could not recall.
Upon cross-examination, attorney Matthew G. Boyd of Elliot Greenleaf & Dean, Scranton, asked Stermer if the townships submitted the plan “on their own” and if there was an obligation they submit a joint plan. Stermer confirmed it was submitted on their own and they did not have to develop a joint plan.
Boyd, who represented Hegins Township, asked if DEP did its own cost analysis to see if the costs were accurate. Stermer deferred the question to James Ridgik, who handled the financial review for DEP. Boyd asked Stermer if he found it “odd” that the figures were so close, for the cost of a public sewer system for Fearnot was estimated at $1,635,600 and the cost for on-lot systems for Fearnot was $1,644,725. Stermer said, “No.”
Cigan’s second witness called was Ridgik.
Ridgik said he reviewed the Act 537 plan from beginning to end. His job was to review the cost estimates and funding analysis, including various scenarios of PennVEST funding. Ridgik said he made sure the plan was reasonable and complete. He based construction costs, he testified, upon his experience. He said he looked at the contingency and soft costs of the project and found them to be acceptable. Ridgik said DEP doesn’t comment on affordability.
The hearing continued Wednesday morning at 10 a.m. with Cigan calling Darryl Fritz, a DEP supervisors who was tasked with reviewing the joint Act 537 plan. He assigned Stermer and Ridgik to assist him in the review.
During Fritz’s testimony, a hand-written note became the topic of discussion. Fritz said they went through the proper channels of review, technical reviews and public comment and felt the plan was implementable and passed the plan.
Walsh asked Fritz if he was aware that in the plan commercial properties were only counted as one EDU. Fritz said he wasn’t aware of that, but said he still would have approved the plan because he claims it’s not uncommon for EDU counts to change from the planning to design stages.
Attorney Dean questioned Fritz on the Fearnot area. Dean asked Fritz how many EDU’s are in Fearnot. Fritz said 50 to 80.
Dean asked Fritz where the previous testimony given only counted eight dwellings in Fearnot? Neiman objected.
Fritz told Dean that he drove through the area but he didn’t count the dwellings. He said he relied on the mapping in the plan.
Dean then questioned Fritz on a handwritten note that he allegedly wrote to another person within DEP concerning the letter received from Atttorney Karpowich’s office asking DEP to deny the plan. Dean asked if it was common to write hand-written notes with no date on it.
Fritz said that is common for him.
Dean said isn’t it fair to say that you already had the plan approved before you even received Karpowich’s letter and you wrote that hand-written note after the fact.
Fritz replied saying, “no it’s not.”
Cigan pointed out the hand-written note was part of the discovery process before the hearing.
Dean asked if DEP would provide the original hand-written document to have an ink test performed on it. Dean said I believe that test will tell the truth and then we will have another legal case aside of this one.
Cigan said DEP will certainly make the document available.
Neiman called one witness to testify on Hubley Twp.’s behalf. James Rhoades Jr. of Alfred Benesch and Company provided expert testimony.
During his testimony, Neiman asked Rhoades if he was aware of action taken by Hegins Township to oppose the current Act 537 Plan.
Rhoades said he wasn’t aware of any action taken that Hegins Twp. opposed the plan. He did note that his firm was removed as the engineer by Hegins Twp. during their meeting in January.
Neiman asked Rhoades if there was a place in the plan where the cost of easements of land was included.
Rhoades said there is no separate line item but it is accounted for in the soft costs of the plan.
Neiman asked if other options were considered for the Fearnot area, such as on-lot systems, etc.
Rhoades said yes, other options were reviewed, but his firm felt that the project would be more favorable for PennVEST funding and more affordable with Fearnot included.
On cross examination Walsh asked Rhoades how much money his firm has been paid to date.
Rhoades said there have been about four or five different versions since 2009 and he is estimating well over $100,000 has been paid.
Walsh asked who was compensating Rhoades for his time at the hearing and how much was he being paid. Rhoades said Hubley Township and $128 per hour.
Boyd cross-examined Rhoades on behalf of Hegins Township.
Boyd asked if it’s true that Alfred Benesch and Company completed a plan for Branch Township and is it true that the cost of the plan was so underestimated that Branch Twp. had to sell the plant to the Schuylkill Municipal Authority.
Rhaodes said the plant was sold to Schuylkill Municipal Authority, but he wasn’t aware of the reason why.
No closing remarks were offered by any of the parties invovled. They agreed they will submit them to Judge Mathers. Walsh will have his to the Judge within 30-days and the others will follow in the allotted time frame.
Judge Mathers said the Environmental Hearing Board is not interested in the hand-written note by DEP and does not want possession of the note. He said that is an issue for DEP and Hegins Township to work out. He said if the ink test proves something the record could always be reopened if there are credible issues.
All closing statements are due within 50 days at which time Judge Mathers will review everything and issue a decision.
“I want to commend all counsel for presenting your cases as you did,” said Judge Mathers. “You respected each other and got your points across.”